Saturday, April 6, 2013

Retribution as Justice

¡Hola! Everybody...

The
most challenging aspect of blogging is the art of adequately
articulating complex issues in everyday language in a short amount of
space. I often miss the mark in this regard. Some of the following will
serve as the basis of my discussion at Columbia University this morning.

* * *

* * *

From
the Plantation
to the Bing: Retribution

You ain’t gotta be locked up to be in prison
/ Look how we livin’ / 30,000 niggas a day up in the bing, standin routine /
They put us in a box, just like our life on the block.

-- Dead Prez,
Behind Enemy Lines

Some of
the poorest Brooklyn city blocks are also some of the priciest. You couldn’t
tell by the surroundings or by the people who live there -- mostly people of
color most of whom live below the poverty line. They are called million dollarblocks by criminal-justice experts who study this phenomenon: In Brooklyn at
one point, there were 35 blocks that fit this category -- city blocks where so
many residents were sent to state prison that the total cost of their
incarceration exceeded more than $1 million.

At the same
time, a quick look at the surrounding schools and other social institutions in
these areas would bring shame to any right-thinking American, regardless of
color. The following is an attempt to articulate a problem from a civil rights
perspective with a street-smart sensibility.

In a
relatively short period of time, we have moved from a nation that had the
audacity to envision a Great Society to a nation that now incarcerates more
people than any other. While the U.S. has 5% of the world’s population, it
accounts for 25% of the world’s prison population (most of those in US
prisons are people of color). At the same time, we remain the most violent and
crime-ridden of all advanced democracies

How did
we get here? Well, it wasn’t by accident and it didn’t happen overnight. In
order to understand how we became a nation of prisons we have to look at crime
and punishment from a historical context. A task I couldn’t possibly hope to do
in a one or two-page Word document. Still, before I move on, I have to at least
try.

Sociologist
Loic Wacquant (2002) maintains that historically not one but several
institutions have been implemented to define, confine, and control African-Americans
in the United States. The first was chattel slavery which made possible the
plantation economy and the caste of racial division from colonial times to the
Civil War. The second was the Jim Crow system of legally imposed discrimination
and segregation that served as the foundation for the agricultural society of
the South from the close of Reconstruction to the Civil Rights revolution which
toppled it a full century after abolition. America’s third mechanism for
containing the descendants of slaves in the Northern industrial metropolis was
the ghetto. It happen along with the African-American Great Migration of
1914–30 to the 1960s, when it was rendered partly obsolete by the mounting
protest of blacks against continued racism, culminating with the urban riots of
the 1960s. The fourth, Wacquant contends, is the institutional complex formed
by the leftovers of the black ghetto and the prison/ industrial complex with
which it has become joined by a linked relationship with institutional racism.

What this
suggests is that slavery and mass imprisonment are intrinsically linked and
that we cannot understand one -- its timing, composition, and inception as well
as the silent ignorance and acceptance of its harmful effects on those it
affects -- without returning to the former as a starting point. In other words,
from a historical viewpoint, the mass incarceration of mostly people of
color in the United States is a direct offshoot from the roots of the
institution of racism.

Now, you
might be wondering what I mean by a “street-smart sensibility,” and if you bear
with me, I’ll try to explain. I cannot, in all good conscience, profess to know
much about present-day urban street culture. As a Nuyorican born and raised in
the ghettos of New York City, however, I was raised during hip hop’s inception
(an articulation of the street if there ever was one) long before MTV got hip
to it, and long before hip-hop culture became mainstream. I will be honest and
say I stopped listening to hip hop before it made its way to the
mainstream of U.S. popular culture (via Yo! MTV Raps or BET). However, through
the years I have maintained an interest in some groups that I felt offered a
powerful social message -- groups such as Public Enemy, A Tribe
Called Quest, and some others, but I don’t know jack about contemporary
hip-hop, nor do I like much of it. For me, hip-hop was more than a musical
genre; it was a ghetto scream calling out for recognition, combining several
elements of modern and traditional culture, not the least of which was
technology. Hip-hop was an urban folklore expressing the gritty reality of life
in the mostly black and Puerto Rican ghettos of New York City.

I think
hip-hop is relevant to a discussion of mass incarceration because its attitude
and moral stance is often called into question and vilified by both black and
white conservatives. I contend that hip-hop, as the main vehicle for a
philosophy of the street, informs this discussion and has the potential
to give it a proper philosophical framework.

Hip-hop
as the dominant chosen form of entertainment and instruction of gifted young
people, has both good and bad effects. If we look beyond the polemics, hip-hop
also serves to resist (and sometimes reinforce) the effects of a postmodern
world steeped in free-market fundamentalism, aggressive macho militarianism,
and increasing privatization of the social sphere. The racial dimension of
hip-hop is unavoidable, and it is here where hip-hop, if looked at as more than
mere cultural expression, can inform and illuminate the present dialog.

If we view criminal justice as retribution, then we have
to acknowledge that justice as retribution mirrors the sentiment that vengeance
is sweet, redeeming those who have been wronged at the hands of others. It is a
desire often expressed by rappers themselves. Yet their desire for retribution
isn’t proposed as part of a legitimate system of punishment. For one, the
situations they portray are oftentimes way outside the law. However, lurking
under rappers’ desire to settle scores lies a steadfast belief that the law
does not (and never did) protect them. If the law doesn’t protect you and won’t
guarantee justice, then it follows that you may have to protect yourself from
your enemies.

Many
rappers are skeptical about justice in America and alarmed by our criminal
justice system. Hip-hop lyrics strongly suggest that racial bias in our
criminal justice system undermines the notion of equal protection under the
law. They also strenuously question whether the historically unprecedented
massive effort to incarcerate black men serves the purpose of public safety.
For them, the notion of the public good and retribution appears as a facade for
an unjust form of social control that helps maintain a system of privilege for
whites. Rap music often aims to strip away the veneer of justice from a system
that unfairly targets youth of color.

Circle the
block where the beef’s at / and park in front of my enemy’s eyes/ They see that
it’s war we life-stealers, hollow-tip busters.

-- Nas, Every
Ghetto

The
popular idea of retribution as a legally sanctioned form of punishment is based
on the assumption that criminal acts call for punishment -- separate from the
consequences of punishment, such as permanent disenfranchisement and the
enduring collateral consequences of imprisonment. From this perspective, the
ends (in this case, retribution) justify the means at whatever societal cost.
The point being that justice is served only when wrongdoers suffer.

In a
lawless context, the line between retribution and self-defense is not so clear,
but advocates of retribution (“retributivists”) are not interested in
retaliation as a reaction to a perceived threat. They advocate retaliation for
wrongdoing as a matter of justice. This led one of the most famous
retributivists, Immanuel Kant, to stress the difference between vengeance and
retribution (a persistent theme in the western and film noir genres, by the
way). In Kant’s view, vengeance is emotional and personal, reckless and often
disproportionate to the crime.

A
civilized society, Kant argued, would replace vengeance with retribution. Yet
the ideal of retribution carries more than a trace of vengeance, as the French
philosopher, Michel Foucault, emphasized in Discipline and Punish: The Birthof the Prison (1995). Some recent retributivists, as in Jeffrie
Murphy’s Getting Even, urge us to embrace the emotional and the personal
value of punishment as retribution. These philosophers accept the connection
between vengeance and the justification of punishment. They offer us four
conditions that vengeance must meet in order to be considered justice:

Communication. The penalty must communicate what
the offender did wrong.

Desert. The punishment must be deserved.

Proportionality. The punishment must fit the crime.

Authority. A legitimate authority must administer
the punishment.

When
these conditions are met, it is claimed, vengeance leads us to justice. However,
rappers and street poets tell us a cautionary tale -- the retributivist’s
conditions aren’t met. For many people living in marginalized communities, the
overriding sentiment is that the authority of a government that doesn’t care
about some of its people can’t claim legitimacy. A legitimate government serves
the interests of all its people, including minority groups. A government
that fails to provide equal protection for all manages only to exercise power,
not legitimate authority. In other words, might does not make right.

The most
basic rights guaranteed by the Constitution and associated with our criminal
justice system are the following: people should not be subjected to
unreasonable searches and seizures (Fourth Amendment); people are innocent
until proven guilty through due process of the law (Fifth Amendment); people
should not be subjected to cruel and unusual punishment (Eight Amendment);
people should be equally protected by the law (Fourteenth Amendment).

Many street
artists and activists correctly point out violations of these basic
constitutional rights -- police and prosecutorial misconduct, lack of access to
legal counsel, unfair sentencing policies, and inhumane prison conditions.
These are well documented and disproportionately affect African Americans and
Latino/as.

Consider the ongong trail regarding the racially inspired
stop and frisk policies of the NYPD. Racial profiling is a policing strategy
that is strongly correlated with excessive force and the disproportionate
incarceration of minorities (Amnesty International, 2004). Problems such as
these undermine not just rights in the U.S., but international rights as well.
In addition, they call into question whether many punishments have been fairly
implemented.

Grounds
for doubt about punishment as retribution extend beyond racial bias in its
application. How could we know whether the desert condition or the proportionality
condition for justice as retribution has been justified? Consider the following
articulation from a leading retributivist on fitting the punishment to the
crime:

Tailoring the fit appears to depend on the
moral sensitivity or intuitions of the punishers. When is the fit right? When
does a suit of clothes fit? When it feels right? Yes, but also when it looks
right to the wearers and others... Morality is an art, not a science.

Statements
such as this should give us cause for alarm. The lack of a shared basis for
moral judgment in a multicultural, multiethnic, multi-religious America dooms
the justification of punishment. In the U.S. the system of punishment costs
about 60 billion dollars per year. It destroys families and communities, and it
deprives those caught in its maws their most basic liberties, often for a
lifetime. Biblical references to the scales of justice, “an eye for an eye,” or
the art of morality are woefully inadequate as a justification for a system of
punishment.

The main
justification or rationale for punishment is in actuality about social control,
not desert. Many artists, activists and just plain people from besieged
communities know this all too well through often humiliating personal experience.
The philosophical roots of punishment as social control come from what is known
as the “consequentialist” school who argued that punishment can only be
justified when it has good consequences for society. Particularly, punishment
is rationalized by considerations of deterrence, rehabilitation, or
incapacitation.

Deterrence is achieved when, through punishment, people
who commit crimes or might potentially commit crimes are discouraged from doing
so. Rehabilitation is achieved when a person who has committed a crime no
longer has the desire to commit crimes and that desire is replaced by a respect
for the social contract. Incapacitation is achieved when those who have
committed crimes can no longer do so because they are incarcerated. Artists, activists,
and people from the streets rightfully express skepticism about whether
anything but incapacitation is achieved by punishment.

I have
shown that the moral standing of a criminal justice system becomes precarious
when the rights of members of groups that are considered outsiders are not
protected. This makes it difficult to secure respect for the law, which lessens
the prospects for rehabilitation. Deterrence is similarly undermined when the
conditions outside of prisons resemble a jungle. When people are poor,
unemployed, without hope, locked out of educational and economic opportunities,
and subjected to the trauma of violence and police abuse, prison becomes
something less foreboding. I would submit that the separation between prisons
and the largely black and brown communities that feed them is a delusion.
People move from medium and maximum-security communities to medium and
maximum-security prisons and back again. And we call this “reentry (another
fallacy).

Of
course, prison is in many ways worse than life on the streets, but the point
here is that people in difficult social circumstances are more willing to take
risks, especially when, to paraphrase Langston Hughes, the “dream explodes.”
This fact, which is part of the trauma of living in the ghetto, weakens the
effectiveness of punishment as a deterrent.

What
we’re left with here is incapacitation and it is the wholesale incapacitation
of mostly black and brown men…

Notes:

“The Bing” is slang for prison and/ or solitary
confinement

Unless otherwise noted, all statistics are from the
Bureau of justice Statistics

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My life experiences have led me to strive to help others move their lives in a positive direction, exploring opportunities that would otherwise be closed to them. I like to think I sit at the crossroads of the dialectic between knowledge and action. I hope that what transpires here is reflective of my beliefs.